4th Circuit remands case to lower court over NSA snooping claims

Another (very tentative) glimmer of hope in the battle for your privacy rights. From AP, April 25:

WASHINGTON — An appeals court on Tuesday returned the criminal case against an Islamic scholar to a trial judge to determine whether the Bush administration’s domestic spying program was used to gather evidence against him.

In a two-page order, a three-judge panel of the 4th U.S. Circuit Court of Appeals granted a request from Ali al-Timimi, a suburban Washington Islamic cleric, to let a federal judge determine whether the government secretly intercepted his conversations or those of others who were key to his case.

Al-Timimi, who is serving a life sentence, was convicted last year of urging young Muslim men to join the Taliban and fight U.S. troops overseas in statements he made at a dinner shortly after the Sept. 11, 2001, attacks.

President Bush has acknowledged that within days of the Sept. 11 attacks he authorized the National Security Agency to conduct warrantless intercepts of conversations between people in the United States and others abroad who had suspected ties to al-Qaida or its affiliates.

In doing so, the administration bypassed the nearly 30-year-old secret Foreign Intelligence Surveillance Act court established to oversee the government’s handling of espionage and terrorism investigations.

Federal prosecutors in Alexandria, Va., where al-Timimi was convicted, consented to the decision by the 4th Circuit in Richmond, Va., to send the case back to U.S. District Judge Leonie Brinkema for further hearings.

Brinkema could determine whether NSA-gathered evidence was used against al-Timimi – without the court being told. She also could press the government to reveal whether it withheld evidence gathered by the NSA that could have helped al-Timimi’s defense.

Jonathan Turley, al-Timimi’s lawyer, said he is eager to learn more about conversations that the NSA intercepted involving Suliman al-Buthe, a central figure in al-Timimi’s trial.

Government attorneys recently revealed by accident in another, unrelated case that al-Buthe’s conversations were secretly monitored and intercepted by the NSA.

Al-Buthe was an officer of the al-Haramain Islamic Foundation, an Islamic charity in Oregon with alleged terrorism ties.

At al-Timimi’s trial, jurors heard testimony about a legally intercepted conversation between al-Timimi and al-Buthe. In that conversation, which was disclosed to the defense, al-Timimi talked about the crash of the space shuttle Columbia.

Al-Buthe, who did not testify at the trial, also played a key role in publishing al-Timimi’s views on the religious significance of the space shuttle crash that suggested it was punishment of the United States.

If the U.S. government had secretly intercepted conversations involving al-Buthe – and failed to turn them over to al-Timimi’s defense attorneys – that would be “a serious violation of federal law,” Turley said.

The appeals court also authorized Brinkema to evaluate the conditions under which al-Timimi is being held by the U.S. Bureau of Prisons.

Turley said al-Timimi has been transferred to a half-dozen prisons over the past six months – usually after the attorney told prison officials he wanted to meet with his client.